162 Ind. 430 | Ind. | 1904
This suit was instituted to establish and enforce a lien against certain real estate belonging to appellant Abigail Hamilton. Ho further statement concerning the issues need be made, in view of the posture of the case on appeal. Pursuant to request, the trial court filed special findings of fact, together with conclusions of law. There was a judgment in favor of appellee in the sum of $1,103.50 against appellant David, and a decree adjudging that said real estate was subject to a lien on such account, and ordering said real estate sold to pay said amount.
The errors assigned question each of the conclusions of law, and also the action of the court in overruling the motion for a new trial.
Stated in a form to some extent condensed, the facts found specially are as follows: Hovember 13, 1888, said David Hamilton, being in failing financial circumstances, executed two deeds. The first deed was to his wife, Abigail Hamilton, and described a number of pieces of property, one of which, characterized in the findings as the “business property,” was worth $7,000, and was encumbered by a mortgage for $2,750 and interest. It is found that she paid no consideration for the latter prop
On June 9, 1891, when the affairs of the trust were in the condition above indicated, appellants and one Tyler entered into a contract, by which appellant Abigail was to deed said business property to Tyler, and the latter was to turn over to her his interest in a flour-mill, subject to a $750 mortgage. An option of purchase was outstanding on the latter property in favor of certain tenants. By his contract Tyler assigned the contract and lease of his tenants to said Abigail, and covenanted to make her a deed if said tenants did not purchase. Tyler, in addition, was to assume, and agree to save appellants harmless from, the mortgage on said business property, which then amounted to $2,735.55, and he was to pay $1,014.45 in cash, $1,000 of which was to be applied on said Freiburg mortgage. It was further provided in said contract, for
It was further found that the trustees of said first-mentioned trust duly executed and discharged the same. Appellee was compelled to pay, as surety, $1,103.50 on said Cole note, which payment fully satisfied said note. TToftzger refused to act as trustee under the Tyler contract, and
The eleventh and seventeenth findings of the court are as follows: “(11) That in the execution of said contract sued on, and the undertaking by her to pay the debt of James O. Cole, as therein stipulated and expressed, she did not become surety for the payment of said debt, but the same was an original undertaking and promise on her part for the purchase money for said mill property, and is part of the consideration for said contract.” “(II) That the contract of June 9, 1891, was fully read over, and its contents and provisions explained to the defendants and each of them, at and before the same was.signed, and that no fraud or misrepresentation was practiced or made to induce defendants, or either of them, to sign the same.”
The conclusions of law were stated as follows: “The court therefore concludes, as a matter of law from the foregoing facts, that said defendant David Hamilton is indebted to said plaintiff Samuel Hamilton in the sum of $1,103.50; that the same is and ought to be declared a lien on said mill property, as described in said contract of June 9,’ 1891, and that, in default of the payment of said sum, said lien ought to be foreclosed, and the said property ordered sold to pay the same.”
In briefing this cause appellants’ counsel hav-e omitted so to classify their points that it can be determined in each instance whether the point is urged with reference to the validity of a conclusion of law, or whether it is presented .as a ground for a new trial. In view of this we shall, in
It is strongly urged upon our consideration by counsel for appellants that the evidence shows that the contract of June 9, 1891, was procured from said Abigail by sharp and unscrupulous practices, if not by actual fraud; that the parties did not meet on an equality, and that the contract obtained was of such a harsh and unconscionable character that a coiirt of equity should refuse to order it specifically performed. IYe hare carefully read the evidence in the case, and have reached the conclusion that there was not such an uncontradicted showing as would warrant us in overthrowing the finding. If we were to look only to the testimony of appellants, a pretty strong case would be presented, but both are disputed upon many vital points by other witnesses. It is not questioned that said David fully understood the character of the business transacted on said day. If he was not honestly representing his wife’s interests at that time, but was seeking rather to get his debt paid by imposing it on her, the evidence strongly tends to show that appellee was not aware of Such unfaithfulness. The contract was read over to her, and she had the opportunity of fully acquainting herself with the facts. The trial court did not find in favor of said Abigail on her averments as to the circumstances in which she was induced to execute the contract, and in view of the testimony we are bound by this result.
It is argued that she had an equity in-said business property of about $4,200, and that the transaction she entered into involved a clear sacrifice of her interests. In determining what was best for her to do in the circumstances which the evidence shows to exist, the problem was not altogether clear. Gole was demanding that some arrangement be made better to secure his debt. The mortgages on the business property and on the 120-acre tract of land were due, and the mortgagees were seeking payment. Assum
It was not essential, however, to the enforcing of said contract, that it should have appeared that said Abigail received in benefit to her estate the full value of what she surrendered. Mere inadequacy of consideration is not in and of itself a sufficient reason for refusing specific performance. Fry, Spec. Perf. (3d Am. ed.), §§418-426; Pomeroy, Contracts, §194; Note to Seymour v. Delancy, 15 Am. Dec. 299; 26 Am. & Eng. Ency. Law (2d ed.), 26, 27.
-It cannot be said that there was no consideration for the promise to pay the indebtedness to Cole. The contract was entire in its character, and the considerations which moved to said Abigail went to the support of the undertaking on which this action is based. Jordan v. Indianapolis Water Co., 159 Ind. 337.
Said Abigail has no cause of complaint because the indebtedness to Cole was not paid in the order of its priority. She was not a party to the deed to said trustees, and had no interest in the proceeds of sales made by them until after all twelve of the items of indebtedness mentioned in said instrument were paid, so that the order of their payment could not concern her.
The fact that appellants engaged to execute a mortgage conditioned to pay the debt to Cole did not make said Abigail a surety. Upon a consideration which moved to her estate, she undertook, as principal, to pay such debt. Looking at the contract as an entirety, it is evident that it was the purpose of the parties, in so far as they were authorized to bind all concerned, to cast upon the property of said Abigail the burden of paying the whole debt. The undertaking was original and primary in its character, and she was the principal therein. The eleventh finding, when taken in connection with the findings as a whole, shows that she was not a surety.
A question is raised by appellants’ counsel as to the sufficiency of the demand made by appellee for the execution of the mortgage, but the point made, as we understand it, goes only to the question as to the power of said Abigail to make the debt of her husband a primary obligation as to her.
There having been a refusal to execute a mortgage to pay a debt long overdue, appellants cannot complain of a decree charging the indebtedness upon the land and ordering a sale thereof. It having become necessary for the trial court to exercise its equitable jurisdiction in appellee’s behalf, it was proper, in the circumstances, for the court to continue its active jurisdiction until full justice was done between the parties. Brace v. Doble, 3 S. D. 110, 52 N. W. 586; Peake v. Young, 40 S. C. 41, 18 S. E. 237; 20 Ency. Pl. & Pr., 479.
A question has been raised as to. the-propriety of the finding that said Abigail was not a purchaser for value of the land conveyed to her in 1888. In the view we take of this case it was immaterial whether she was a purchaser for value or not.
We observe that in addition to the decree fixing a lien upon the real estate, and ordering it sold in case of nonpayment, there was also a personal judgment against said David. Ro question is made upon this point, and we do not therefore determine whether he was liable.
Judgment affirmed.